Union fees in jeopardy: In Plain English

Posted Mon, January 11th, 2016 5:08 pm by Amy Howe

For nearly forty years, it has been settled that, although public employees who don’t join a union cannot be required to pay for the union’s political activities, they can be charged an “agency” or “fair share” fee to pay for other costs that the union incurs – for example, for collective bargaining. After over an hour of oral arguments today, public-employee unions are likely very nervous, as the Court’s more conservative Justices appeared ready to overrule the Court’s 1977 decision in Abood v. Detroit Board of Educationand strike down the fees. Let’s talk about Friedrichs v. California Teachers Association in Plain English.

The most telling sign that lead plaintiff Rebecca Friedrichs and her fellow teachers are likely to prevail may have actually come from the Court’s four more liberal Justices, who spent relatively little time on the main legal issue before the Court – that is, whether requiring non-members to pay the fee violates the First Amendment. Instead, many of their questions centered on whether, even if Friedrichs has a stronger legal argument, the Court should still rule against her based on a legal doctrine known as “stare decisis” – which counsels that the Court should not overturn its prior rulings unless there is a particularly compelling reason to do so. This suggests that the more liberal Justices realized that the battle on the merits of the case was not one that they could win. And so they shifted gears, trying to salvage a victory by convincing at least one of their colleagues that it would, as a matter of principle, be a bad idea to overrule the decision in Abood.

Justice Elena Kagan led the charge, telling Michael Carvin – who argued on behalf of Friedrichs – that public-employee unions have entered “tens of thousands of contracts,” governing “millions of employees, maybe as high as 10 million employees,” that would be disrupted if the Court were to overturn Abood. Therefore, she asked Carvin, “what special justification are you offering here” to do so? When Carvin answered that “the right of the citizen not to be subjected to unconstitutional treatment outweighs any reliance or predictability interests of stare decisis,” Kagan shot back, clearly unconvinced: “Your answer is essentially you don’t need a special justification if” the first decision denied a constitutional right? Justice Ruth Bader Ginsburg chimed in, asking whether employees who don’t join a union would ask for their fees back if Friedrichs wins and suggesting to Carvin that, if the Court overrules Abood, other cases that rely on it would also fall, with far-reaching effects.

In at least a brief flicker of hope for the unions, Justice Anthony Kennedy also seemed to express some concern, telling Carvin that, if they were to “assume that stare decisis is an important consideration for the Court,” what happens to the “many contracts, perhaps thousands of contracts?” Carvin stood his ground, telling Kennedy that the extent to which unions and governments may have relied on the Court’s decision in Abood is irrelevant.

Justice Stephen Breyer made an even broader appeal, focused on the effect that reversing course on the union fees would have on the public’s view of the Court, that may have been directed not only at Kennedy but also at Chief Justice John Roberts, who cares very much about the Court’s legitimacy. Noting that the Court’s ruling in Abood has worked “reasonably well,” Breyer asked Carvin to explain, “from the point of view of this Court’s role in society,” when “you start overruling things,” “what happen to the country thinking of us as a kind of stability . . . in a world that is tough because it changes a lot?” “It’s a matter of considerable concern,” Breyer emphasized. Breyer acknowledged that some decisions should be overturned – for example, the Court’s 1896 decision in Plessy v. Ferguson, which upheld laws mandating racial segregation under the “separate but equal” doctrine. That decision, Breyer reasoned, “certainly should have been overruled” “because it was a right to treat people equally.” But, Breyer told Carvin, “I can’t find a basic principle here that’s erroneous.”

Questions from the Court’s more conservative Justices confirmed that the more liberal Justices had good reason to be concerned that Friedrichs had the advantage on the merits, as the more conservative Justices displayed skepticism about virtually all of the major arguments proffered in support of the union fees. Arguing on behalf of California, which supported the union, California Solicitor General Edward DuMont emphasized the long history of labor unrest in California in the 1960s, which prompted the state to adopt the current system of unions and fees. California has a critical interest in managing government workplaces, DuMont told the Justices, and it needs to be able to deal with a single union that employees also perceive as adequately representing their interests. The fees at issue in this case serve an important interest in ensuring that such a representative exists, he argued, by providing sufficient and stable funding for the union.

Justice Antonin Scalia voiced sympathy for the state’s need to run its workplaces smoothly, but he was nonetheless dubious about both the need to charge non-members a fee and the consequences if the Court were to strike down the fees. Scalia asked DuMont to explain why public-employee unions would not survive when unions representing federal employees don’t charge non-members similar fees but nonetheless “prosper,” in Scalia’s words. Michael Carvin returned to this point during his rebuttal, reminding the Justices that, in addition to the federal government, twenty-five states already prohibit such fees and were “all fine.”

And Justice Anthony Kennedy downplayed what the union characterizes as a “free rider” problem – the idea that a public employee who declines to join the union that represents him benefits from the union’s work on his behalf without having to pay for it. He told DuMont that “many teachers strongly, strongly disagree with the union’s position.” Charging them a fee, he suggested, doesn’t solve the “free rider” problem, but instead makes them a “compelled rider” on those positions.

Representing the California Teachers Association, David Frederick focused on the nuts and bolts of collective bargaining, explaining that the resulting contracts were “very long, detailed agreements” that covered not only hot-button issues but also more mundane questions like when teachers should arrive at work. All of those questions, he told the Court, require the union to (among other things) conduct legal research and survey its members – the kinds of activities that the fees at issue in this case support. But Scalia countered that, if the union’s work was clearly so important, it should easily be able to convince teachers to join the union instead. And when Frederick emphasized that regulations governing how firefighters in Wisconsin should safely respond to fires were the result of collective bargaining, Roberts retorted that “all of that would still survive” if Friedrichs were to prevail, “unless your basic argument” is that “the unions are going to collapse and not be in a position to negotiate those safety requirements.”

By contrast, some of the Court’s more conservative Justices clearly seemed to buy into a point crucial to Friedrichs’s argument: the idea that, unlike unions in the private sector, the collective bargaining process for public-employee unions is an inherently political one because the salaries and benefits and policies that the union is negotiating affect government budgets. During DuMont’s argument, Scalia told him that “everything that is collectively bargained with the government is within the political sphere, almost by definition,” and Scalia later told U.S. Solicitor General Donald Verrilli, arguing on behalf of the federal government in support of the union, that the government is “not the same as a private employer” – “what is bargained for is all a matter of public interest.” Roberts echoed this sentiment, telling DuMont that “the amount of money that’s going to be allocated to public education, as opposed to public housing, welfare benefits, that’s always a public policy issue.”

The Justices paid relatively little attention to the other question in the case: whether a public employee who doesn’t join a union can be required to affirmatively “opt out” to receive a refund of the part of the fee that is not related to collective bargaining. As I explained in my preview of the case, Friedrichs and the other challengers argue that, instead of charging everyone for those expenses and requiring non-members to opt out, the union should only charge the people who affirmatively opt in by agreeing to pay them. The Justices didn’t seem particularly interested in this question, but the few questions that they did ask suggested that they could rule for the challengers on this issue too. We’ll know more in a few months, when the Justices issue their decision; when they do, we will be back to cover it in Plain English.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case. The author of this post, however, is not affiliated with the law firm.]

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.